Miscegenation law, court cases, and ideologies of "race" in twentieth-century America

Journal of American History

Volumn 83, Issue 1, 1996, Pages 44-69

  Pascoe, Peggy ^a  

^a UNIVERSITY OF UTAH   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0002303879     PISSN: 00218723     EISSN: None     Source Type: Journal    
DOI: 10.2307/2945474     Document Type: Article

References (173)

1. Ariz. Rev. Star. Ann. sec. 3837 (1913); "Appellant's Abstract of Record," Aug. 8, 1921, pp. 1-2, Kirby v. Kirby, docket 1970 (microfilm: file 36.1.134), Arizona Supreme Court Civil Cases (Arizona State Law Library, Phoenix).
2. "Appellant's Abstract of Record," 12-13, 13-15, 15, Kirby v. Kirby.
3. "Appellant's Abstract of Record," Ibid., 16-18.
4. "Appellant's Abstract of Record," Ibid., 19.
5. Evelyn Brooks Higginbotham, "African-American Women's History and the Metalanguage of Race," Signs, 17 (Winter 1992), 253.
6. See Michael Omi and Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s (New York, 1994);
7. David Theo Goldberg, ed., Anatomy of Racism (Minneapolis, 1990);
8. Henry Louis Gates Jr., ed., "Race," Writing, and Difference (Chicago, 1986);
9. Dominick LaCapra, ed., The Bounds of Race: Perspectives on Hegemony and Resistance (Ithaca, 1991);
10. F. James Davis, Who Is Black? One Nation's Definition (University Park, 1991);
11. Sandra Harding, ed., The "Racial" Economy of Science: Toward a Democratic Future (Bloomington, 1993);
12. Maria P. P. Root, ed., Racially Mixed People in America (Newbury Park, 1992);
13. Ruth Frankenberg, White Women, Race Matters: The Social Construction of Whiteness (Minneapolis, 1993).
14. Among the most provocative recent works are Higginbotham, "African-American Women's History";
15. Barbara J. Fields, "Ideology and Race in American History," in Region, Race, and Reconstruction: Essays in Honor of C. Vann Woodward, ed. J. Morgan Kousser and James M. McPherson (New York, 1982), 143-78;
16. Thomas C. Holt, "Marking: Race, Race-Making, and the Writing of History," American Historical Review, 100 (Feb. 1995), 1-20;
17. David R. Roediger, Towards the Abolition of Whiteness: Essays on Race, Politics, and Working Class History (London, 1994).
18. On scientific racism, see Thomas F. Gossett, Race: The History of an Idea in America (Dallas, 1963);
19. George W. Stocking Jr., Race, Culture, and Evolution: Essays in the History of Anthropology (1968; Chicago, 1982); 1968;
20. John S. Haller Jr., Outcasts from Evolution: Scientific Attitudes to Racial Inferiority, 1859-1900 (Urbana, 1971);
21. George M. Fredrickson, The Black Image in the White Mind: The Debate on Afro-American Character and Destiny, 1817-1914 (New York, 1971);
22. Thomas G. Dyer, Theodore Roosevelt and the Idea of Race (Baton Rouge, 1980);
23. Carl N. Degler, In Search of Human Nature: The Decline and Revival of Darwinism in American Social Thought (New York, 1991);
24. Elazar Barkan, Retreat of Scientific Racism: Changing Concepts of Race in Britain and the United States between the World Wars (Cambridge, Eng., 1992).
25. On the social construction of racial ideologies, see the works cited in footnote 6, above, and Ronald T. Takaki, Iron Cages: Race and Culture in Nineteenth-Century America (New York, 1979);
26. Reginald Horsman, Race and Manifest Destiny: The Origins of American Racial Anglo-Saxonism (Cambridge, Mass., 1981);
27. Alexander Saxton, The Rise and Fall of the White Republic: Class Politics and Mass Culture in Nineteenth-Century America (London, 1990);
28. David R. Roediger, The Wages of Whiteness: Race and the Making of the American Working Class (London, 1991);
29. Audrey Smedley, Race in North America: Origin and Evolution of a Worldview (Boulder, 1993);
30. Tomas Almaguer, Racial Fault Lines: The Historical Origins of White Supremacy in California (Berkeley, 1994).
31. On law as a producer of racial ideologies, see Barbara J. Fields, "Slavery, Race, and Ideology in the United States of America," New Left Review, 181 (May-June 1990), 7;
32. Eva Saks, "Representing Miscegenation Law," Raritan, 8 (Fall 1988), 56-60;
33. Collette Guillaumin, "Race and Nature: The System of Marks," Feminist Issues, 8 (Fall 1988), 25-44.
34. See especially Fredrickson, Black Image in the White Mind.
35. For intriguing attempts to define American modernism, see Daniel J. Singal, ed., Modernist Culture in America (Belmont, 1991);
36. Dorothy Ross, ed., Modernist Impulses in the Human Sciences, 1870-1930 (Baltimore, 1994).
37. For the view from critical race theory, see Brian K. Fair, "Foreword: Rethinking the Colorblindness Model," National Black Law Journal, 13 (Spring 1993), 1-82;
38. Neil Gotanda, "A Critique of 'Our Constitution Is Color-Blind,'" Stanford Law Review, 44 (Nov. 1991), 1-68;
39. Gary Peller, "Race Consciousness," Duke Law Journal (Sept. 1990), 758-847;
40. Peter Fitzpatrick, "Racism and the Innocence of Law," in Anatomy of Racism, ed. Goldberg, 247-62.
41. Many scholars avoid using the word miscegenation, which dates to the 1860s, means race mixing, and has, to twentieth-century minds, embarrassingly biological connotations; they speak of laws against "interracial" or "cross-cultural" relationships. Contemporaries usually referred to "anti-miscegenation" laws. Neither alternative seems satisfactory, since the first avoids naming the ugliness that was so much a part of the laws and the second implies that "miscegenation" was a distinct racial phenomenon rather than a categorization imposed on certain relationships. I retain the term miscegenation when speaking of the laws and court cases that relied on the concept, but not when speaking of people or particular relationships. On the emergence of the term, see Sidney Kaplan, "The Miscegenation Issue in the Election of 1864," Journal of Negro History, 24 (July 1949), 274-343.
42. Most histories of interracial sex and marriage in America focus on demographic patterns, rather than legal constraints. See, for example, Joel Williamson, New People: Miscegenation and Mulattoes in the United States (New York, 1980);
43. Paul R. Spickard, Mixed Blood: Intermarriage and Ethnic Identity in Twentieth-Century America (Madison, 1989);
44. Deborah Lynn Kitchen, "Interracial Marriage in the United States, 1900-1980" (Ph.D. diss., University of Minnesota, 1993).
45. The only historical overview is Byron Curti Martyn, "Racism in the United States: A History of the Anti-Miscegenation Legislation and Litigation" (Ph.D. diss., University of Southern California, 1979).
46. On the colonial period, see A. Leon Higginbotham Jr. and Barbara K. Kopytoff, "Racial Purity and Interracial Sex in the Law of Colonial and Antebellum Virginia," Georgetown Law Journal, 77 (Aug. 1989), 1967-2029;
47. George M. Fredrickson, White Supremacy: A Comparative Study in American and South African History (New York, 1981), 99-108;
48. James Hugo Johnston, Race Relations in Virginia & Miscegenation in the South, 1776-1860 (Amherst, 1970), 165-90.
49. For later periods, see Peter Bardaglio, "Families, Sex, and the Law: The Legal Transformation of the Nineteenth-Century Southern Household" (Ph.D. diss., Stanford University, 1987), 37-106, 345-49;
50. Peter Wallenstein, "Race, Marriage, and the Law of Freedom: Alabama and Virginia, 1860s-1960s," Chicago-Kent Law Review, 70 (no. 2, 1994), 371-437;
51. David H. Fowler, Northern Attitudes towards Interracial Marriage: Legislation and Public Opinion in the Middle Atlantic and the States of the Old Northwest, 1780-1930 (New York, 1987);
52. Megumi Dick Osumi, "Asians and California's Anti-Miscegenation Laws," in Asian and Pacific American Experiences: Women's Perspectives, ed. Nobuya Tsuchida (Minneapolis, 1982), 2-8;
53. Peggy Pascoe, "Race, Gender, and Intercultural Relations: The Case of Interracial Marriage," Frontiers, 12 (no. 1, 1991), 5-18.
54. The count of states is from the most complete list in Fowler, Northern Attitudes, 336-439.
55. Ariz. Rev. Stat. Ann. sec. 3092 (1901); 1931 Ariz. Sess. Laws ch. 17. Arizona, Idaho, Maine, Massachusetts, Nevada, North Carolina, Oregon, Rhode Island, South Carolina, Tennessee, Virginia, and Washington passed laws that mentioned American Indians. Arizona, California, Georgia, Idaho, Mississippi, Missouri, Montana, Nebraska, Nevada, Oregon, South Dakota, Utah, Virginia, and Wyoming passed laws that mentioned Asian Americans. Arizona, California, Georgia, Maryland, Nevada, South Dakota, Utah, Virginia, and Wyoming passed laws that mentioned "Malays." In addition, Oregon law targeted "Kanakas" (native Hawaiians), Virginia "Asiatic Indians," and Georgia both "Asiatic Indians" and "West Indians." See Fowler, Northern Attitudes, 336-439; 1924 Va. Acts ch. 371; 1927 Ga. Laws no. 317; 1931 Ariz. Sess. Laws ch. 17; 1933 Cal. Stat. ch. 104; 1935 Md. Laws ch. 60; and 1939 Utah Laws ch. 50.
56. The most insightful social and legal histories have focused on sexual relations rather than marriage. See, for example, Higginbotham and Kopytoff, "Racial Purity and Interracial Sex"; Karen Getman, "Sexual Control in the Slaveholding South: The Implementation and Maintenance of a Racial Caste System," Harvard Women's Law Journal, 7 (Spring 1984), 125-34;
57. Martha Hodes, "Sex across the Color Line: White Women and Black Men in the Nineteenth-Century American South" (Ph.D. diss., Princeton University, 1991);
58. Martha Hodes, "The Sexualization of Reconstruction Politics: White Women and Black Men in the South after the Civil War," in American Sexual Politics: Sex, Gender, and Race since the Civil War, ed. John C. Fout and Maura Shaw Tantillo (Chicago, 1993), 59-74;
59. Robyn Weigman, "The Anatomy of Lynching," American Sexual Politics: Sex, Gender, and Race since the Civil War, ibid., 223-45;
60. Jacquclyn Dowd Hall, "'The Mind That Burns in Each Body': Women, Rape, and Racial Violence," in Powers of Desire: The Politics of Sexuality, ed. Ann Snitow, Christine Stansell, and Sharon Thompson (New York, 1983), 328-49;
61. Kenneth James Lay, "Sexual Racism: A Legacy of Slavery," National Black Law Journal, 13 (Spring 1993), 165-83;
62. Kevin J. Mumford, "From Vice to Vogue: Black/White Sexuality and the 1920s" (Ph.D. diss., Stanford University, 1993).
63. One of the first works to note the predominance of marriage in miscegenation laws was Mary Frances Berry, "Judging Morality: Sexual Behavior and Legal Consequences in the Late Nineteenth-Century South," Journal of American History, 78 (Dec. 1991), 838-39.
64. On the historical connections among race, marriage, property, and the state, see Saks, "Representing Miscegenation Law," 39-69;
65. Nancy F. Cott, "Giving Character to Our Whole Civil Polity: Marriage and the Public Order in the Late Nineteenth Century," in U.S. History as Women's History: New Feminist Essays, ed. Linda K. Kerber, Alice Kessler-Harris, and Kathryn Kish Sklar (Chapel Hill, 1995), 107-21;
66. Ramon A. Gutierrez, When Jesus Came, the Corn Mothers Went Away: Marriage, Sexuality, and Power in New Mexico, 1500-1846 (Stanford, 1991);
67. Verena Martinez-Alier, Marriage, Class, and Colour in Nineteenth-Century Cuba: A Study of Racial Attitudes and Sexual Values in a Slave Society (Ann Arbor, 1989);
68. Patricia J. Williams, "Fetal Fictions: An Exploration of Property Archetypes in Racial and Gendered Contexts," in Race in America: The Struggle for Equality, ed. Herbert Hill and James E. Jones Jr. (Madison, 1993), 425-37;
69. Virginia R. Dominguez, White by Definition: Social Classification in Creole Louisiana (New Brunswick, 1986).
70. Of the 41 colonies and states that prohibited interracial marriage, 22 also prohibited some form of interracial sex. One additional jurisdiction (New York) prohibited interracial sex but not interracial marriage; it is not clear how long this 1638 statute was in effect. See Fowler, Northern Attitudes, 336-439. My database consists of every appeals court case I could identify in which miscegenation law played a role: 227 cases heard between 1850 and 1970, 132 civil and 95 criminal. Although cases that reach appeals courts are by definition atypical, they are significant because the decisions reached in them set policies later followed in more routine cases and because the texts of the decisions hint at how judges conceptualized particular legal problems. I have relied on them because of these interpretive advantages and for two more practical reasons. First, because appeals court decisions are published and indexed, it is possible to compile a comprehensive list of them. Second, because making an appeal requires the preservation of documents that might otherwise be discarded (such as legal briefs and court reporters' trial notes), they permit the historian to go beyond the judge's decision.
71. Decisions striking down the laws include Burns v. State, 48 Ala. 195 (1872); Bonds v. Foster, 36 Tex. 68 (1871-1872); Honey v. Clark, 37 Tex. 686 (1873); Hart v. Hoss, 26 La. Ann. 90 (1874); State v. Webb, 4 Cent. L. J. 588 (1877); and Ex parte Brown, 5 Cent. L. J. 149 (1877). Decisions upholding the laws include Scott v. State, 39 Ga. 321 (1869); State v. Hairston, 63 N.C. 451 (1869); State v. Reinhardt, 63 N.C. 547 (1869); In re Hobbs, 12 F. Cas. 262 (1871) (No. 6550); Lonas v. State, 50 Tenn. 287 (1871); State v. Gibson, 36 Ind. 389 (1871); Ford v. State, 53 Ala. 150 (1875); Green v. State, 58 Ala. 190 (1877); Frasher v. State, 3 Tex. Ct. App. R. 263 (1877); Ex Parte Kinney, 14 F. Cas. 602 (1879) (No. 7825); Ex parte Francois, 9 F. Cas. 699 (1879) (No. 5047); Francois v. State, 9 Tex. Ct. App. R. 144 (1880); Pace v. State, 69 Ala. 231 (1881); Pace v. Alabama, 106 U.S. 583 (1882); State v. Jackson, 80 Mo. 175 (1883); State v. Tutty, 41 F. 753 (1890); Dodson v. State, 31 S.W. 977 (1895); Strauss v. State, 173 S.W. 663 (1915); State v. Daniel, 75 So. 836 (1917); Succession of Mingo, 78 So. 565 (1917-18); and In re Paquet's Estate, 200 P. 911 (1921).
72. Individual racial classifications were successfully challenged in Moore v. State, 7 Tex. Ct. App. R. 608 (1880); Jones v. Commonwealth, 80 Va. 213 (1884); Jones v. Commonwealth, 80 Va. 538 (1885); State v. Treadaway, 52 So. 500 (1910); Flores v. State, 129 S.W. 1111 (1910); Ferrall v. Ferrall, 69 S.E. 60 (1910); Marre v. Marre, 168 S.W. 636 (1914); Neuberger v. Gueldner, 72 So. 220 (1916); and Reed v. State, 92 So. 511 (1922).
73. "Appellant's Abstract of Record," 19, Kirby v. Kirby.
74. "Appellee's Brief," Oct. 3, 1921, p. 6, ibid.
75. On the theoretical problems involved in exploring how miscegenation laws were gendered, see Pascoe, "Race, Gender, and Intercultural Relations";
76. and Peggy Pascoe, "Race, Gender, and the Privileges of Property: On the Significance of Miscegenation Law in United States History," in New Viewpoints in Women's History: Working Papers from the Schlesinger Library 50th Anniversary Conference, March 4-5, 1994, ed. Susan Ware (Cambridge, Mass., 1994), 99-122.
77. For an excellent account of the gendering of early miscegenation laws, see Kathleen M. Brown, Good Wives and Nasty Wenches: Gender, Race, and Power in Colonial Virginia (Chapel Hill, 1996).
78. "Appellant's Brief," Sept. 8, 1921, Kirby v. Kirby; Kirby v. Kirby, 206 P. 405, 406 (1922).
79. On Kirby, see Roger Hardaway, "Unlawful Love: A History of Arizona's Miscegenation Law," Journal of Arizona History, 27 (Winter 1986), 377-90.
80. For examples of reliance on experts, see In re Ah Yup, 1 F. Cas. 223 (1878) (No. 104); In re Kanaka Nian, 21 P. 993 (1889); In re Saito, 62 F. 126 (1894). On these cases, see Ian F. Haney Lopez, White by Law: The Legal Construction of Race (New York, forthcoming).
81. For reliance on the "common man," see U.S. v. Bhagat Singh Thind, 261 U.S. 204 (1923). On Thind, see Sucheta Mazumdar, "Racist Responses to Racism: The Aryan Myth and South Asians in the United States," South Asia Bulletin, 9 (no. 1, 1989), 47-55;
82. Joan M. Jensen, Passage from India: Asian Indian Immigrants in North America (New Haven, 1988), 247-69;
83. Roediger, Towards the Abolition of Whiteness, 181-84.
84. The rise of Boasian anthropology has attracted much attention among intellectual historians, most of whom seem to agree with the 1963 comment that "it is possible that Boas did more to combat race prejudice than any other person in history"; see Gossett, Race, 418.
85. In addition to the works cited in footnote 7, see I. A. Newby, Jim Crow's Defense: Anti-Negro Thought in America, 1900-1930 (Baton Rouge, 1965), 21;
86. John S. Gilkeson Jr., "The Domestication of 'Culture' in Interwar America, 1919-1941," in The Estate of Social Knowledge, ed. JoAnne Brown and David K. van Keuren (Baltimore, 1991), 153-74.
87. For more critical appraisals, see Robert Proctor, "Eugenics among the Social Sciences: Hereditarian Thought in Germany and the United States," The Estate of Social Knowledge, ibid., 175-208;
88. Hamilton Cravens, The Triumph of Evolution: The Heredity-Environment Controversy, 1900-1941 (Baltimore, 1988);
89. Donna Haraway, Primate Visions: Gender, Race, and Nature in the World of Modern Science (New York, 1989), 127-203.
90. The classic - and still the best - account of the rise of cultural anthropology is Stocking, Race, Culture, and Evolution.
91. See also George W. Stocking Jr., Victorian Anthropology (New York, 1987), 284-329.
92. U.S. Immigration Commission, Dictionary of Races or Peoples (Washington, 1911), 2.
93. For other scientific racist classification schemes, see Encyclopaedia Britannica, 11th ed., s.v. "Anthropology";
94. Encyclopedia Americana: A Library of Universal Knowledge (New York, 1923), s.v. "Ethnography" and "Ethnology."
95. Franz Boas, "Race," in Encyclopaedia of the Social Sciences, ed. Edwin R. A. Seligman (15 vols., New York, 1930-1935), XIII, 27;
96. Julian S. Huxley and A. C. Haddon, We Europeans: A Survey of "Racial" Problems (London, 1935), 107.
97. Boas, "Race," 34.
98. For one of the few instances when a historian has noted this argument, see Smedley, Race in North America, 275-82.
99. Ruth Benedict, Race: Science and Politics (New York, 1940), 12;
100. Ruth Benedict and Gene Weltfish, The Races of Mankind (Washington, 1943), 5;
101. Benedict, Race, 12.
102. Boas, "Race," 25-26.
103. See, for example, Huxley and Haddon, We Europeans, 107, 269-73;
104. Benedict and Weltfish, Races of Mankind;
105. Benedict, Race;
106. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York, 1944), 91-115.
107. The Monks trial can be followed in Estate of Monks, 4 Civ. 2835, Records of California Court of Appeals, Fourth District (California State Archives, Roseville); and Gunn v. Giraudo, 4 Civ. 2832, ibid. (Gunn represented another claimant to the estate.) The two cases were tried together. For the 7-volume "Reporter's Transcript," see Estate of Monks, 4 Civ. 2835, ibid.
108. "Reporter's Transcript," vol. 2, pp. 660-67, vol. 3, pp. 965-76, 976-98, Estate of Monks.
109. "Reporter's Transcript," Ibid., vol. 5, pp. 1501-49, vol. 6, pp. 1889-1923.
110. "Reporter's Transcript," Ibid., vol. 7, pp. 2543, 2548.
111. "Findings of Fact and Conclusions of Law," in "Clerk's Transcript," Dec. 2, 1940, Gunn v. Giraudo, 4 Civ. 2832, p. 81. One intriguing aspect of the Monks case is that the seeming exactness was unnecessary. The status of the marriage hinged on the Arizona miscegenation law, which would have denied validity to the marriage whether the proportion of "blood" in question was "one-eighth" or "one drop."
112. For descriptions of those interested in biological aspects of race, see Stocking, Race, Culture, and Evolution, 271-307;
113. I. A. Newby, Challenge to the Court: Social Scientists and the Defense of Segregation, 1954-1966 (Baton Rouge, 1969);
114. Cravens, Triumph of Evolution, 15-55.
115. On eugenics, see Proctor, "Eugenics among the Social Sciences," 175-208;
116. Daniel J. Kevles, In the Name of Eugenics: Genetics and the Uses of Human Heredity (New York, 1985);
117. Mark H. Haller, Eugenics: Hereditarian Attitudes in American Thought (New Brunswick, 1963);
118. William H. Tucker, The Science and Politics of Racial Research (Urbana, 1994), 54-137.
119. Charles B. Davenport, Eugenics Record Office Bulletin No. 9: State Laws Limiting Marriage Selection Examined in the Light of Eugenics (Cold Spring Harbor, 1913);
120. Michael Grossberg, "Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony," American Journal of Legal History, 26 (July 1982), 221-24.
121. See, for example, C[harles] B[enedict] Davenport and Morris Steggerda, Race Crossing in Jamaica (1929; Westport, 1970);
122. Edward Byron Reuter, Race Mixture: Studies in Intermarriage and Miscegenation (New York, 1931);
123. Emory S. Bogardus, "What Race Are Filipinos?," Sociology and Social Research, 16 (1931-1932), 274-79.
124. 1924 Va. Acts ch. 371; 1927 Ga. Laws no. 317; 1927 Ala. Acts no. 626. The 1924 Virginia act replaced 1910 Va. Acts ch. 357, which classified as "colored" persons with 1/16 or more "negro blood." The retention of an allowance for American Indian "blood" in persons classed as white was forced on the bill's sponsors by Virginia aristocrats who traced their ancestry to Pocahontas and John Rolfe. See Paul A. Lombarde, "Miscegenation, Eugenics, and Racism: Historical Footnotes to Loving v. Virginia," U.C. Davis Law Review, 21 (Winter 1988), 431-52;
125. Richard B. Sherman, "The Last Stand': The Fight for Racial Integrity in Virginia in the 1920s," Journal of Southern History, 54 (Feb. 1988), 69-92.
126. "Appellant's Opening Brief," Gunn v. Giraudo, 12-13. This brief appears to have been prepared for the California Supreme Court but used in the California Court of Appeals, Fourth District. On February 14, 1942, the California Supreme Court refused to review the Court of Appeals decision. See Estate of Monks, 48 C.A. 2d 603, 621 (1941).
127. Estate of Monks, 48 C.A. 2d 603, 612-15 (1941); Monks v. Lee, 317 U.S. 590 (appeal dismissed, 1942), 711 (reh'g denied, 1942); Lee v. Monks, 62 N.E. 2d 657 (1945); Lee v. Monks, 326 U.S. 696 (cert. denied, 1946).
128. On the case, see San Diego Union, July 21, 1939-Jan. 6, 1940. On the testimony of expert witnesses on race, see ibid., Sept. 21, 1939, p. 4A; ibid., Sept. 29, 1939, p. 10A; and ibid., Oct. 5, 1939, p. 8A.
129. Perez v. Lippold, L.A. 20305, Supreme Court Case Files (California State Archives). The case was also known as Perez v. Moroney and Perez v. Sharp (the names reflect changes of personnel in the Los Angeles County clerk's office). I have used the title given in the Pacific Law Reporter, the most easily available version of the final decision: Perez v. Lippold, 198 P. 2d 17 (1948).
130. "Petition for Writ of Mandamus, Memorandum of Points and Authorities and Proof of Service," Aug. 8, 1947, Perez v. Lippold;
131. "Points and Authorities in Opposition to Issuance of Alternative Writ of Mandate," Aug. 13, 1947, ibid.;
132. "Return by Way of Demurrer," Oct. 6, 1947, ibid.;
133. "Return by Way of Answer," Oct. 6, 1947, ibid.;
134. "Respondent's Brief in Opposition to Writ of Mandate," Oct. 6, 1947, ibid.
135. "[Oral Argument] On Behalf of Respondent," Oct. 6, 1947, pp. 3-4, ibid.
136. Stanley Mosk, "A Retrospective," California Law Review, 71 (July 1983), 1045;
137. Peter Anderson, "A Remembrance," California Law Review, ibid., 1066-71.
138. "Petitioners' Reply Brief," Nov. 8, 1947, pp. 4, 44, 23-24, Perez v. Lippold.
139. Perez v. Lippold, 198 P. 2d at 17-35, esp. 29, 34.
140. Ibid., 35-47.
141. For the characterization of Franz Boas, by Robert Gayres, editor of the Scottish journal Mankind Quarterly,
142. see Newby, Challenge to the Court, 323.
143. On Mankind Quarterly and on mid-twentieth-century white supremacist scientists, see Tucker, Science and Politics of Racial Research.
144. Myrdal, American Dilemma, 116-17.
145. Loving v. Commonwealth, 147 S.E. 2d 78, 79 (1966). For the Loving briefs and oral arguments, see Philip B. Kurland and Gerhard Casper, eds., Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law, vol. LXIV (Arlington, 1975), 687-1007.
146. Edited cassette tapes of the oral argument are included with Peter Irons and Stephanie Guitton, ed., May It Please the Court: The Most Significant Oral Arguments Made before the Supreme Court since 1955 (New York, 1993).
147. For scholarly assessments, see Wallenstein, "Race, Marriage, and the Law of Freedom";
148. Walter Wadlington, "The Loving Case: Virginia's Antimiscegenation Statute in Historical Perspective," in Race Relations and the Law in American History: Major Historical Interpretations, ed. Kermit L. Hall (New York, 1987), 600-634;
149. Robert J. Sickels, Race, Marriage, and the Law (Albuquerque, 1972).
150. Loving v. Virginia, 388 U.S. 1, 3 (1967); Wallenstein, "Race, Marriage, and the Law of Freedom," 423-25, esp. 424;
151. New York Times, June 12, 1992, p. B7.
152. By the mid-1960s some legal scholars had questioned the constitutionality of miscegenation laws, including C. D. Shokes, "The Serbonian Bog of Miscegenation," Rocky Mountain Law Review, 21 (1948-1949), 425-33;
153. Wayne A. Melton, "Constitutionality of State Anti-Miscegenation Statutes," Southwestern Law Journal, 5 (1951), 451-61;
154. Andrew D. Weinberger, "A Reappraisal of the Constitutionality of Miscegenation Statutes," Cornell Law Quarterly, 42 (Winter 1957), 208-22;
155. Jerold D. Cummins and John L. Kane Jr., "Miscegenation, the Constitution, and Science," Dicta, 38 (Jan.-Feb. 1961), 24-54;
156. William D. Zabel, "Interracial Marriage and the Law," Atlantic Monthly, 216 (Oct. 1965), 75-79;
157. Cyrus E. Phillips IV, "Miscegenation: The Courts and the Constitution," William and Mary Law Review, 8 (Fall 1966), 133-42.
158. Kurland and Casper, eds., Landmark Briefs, 741-88, 847-950, 960-72, esp. 898-99, 901.
159. Landmark Briefs, Ibid., 789-845, 976-1003.
160. Landmark Briefs, Ibid., 834, 1007.
161. Loving v. Virginia, 388 U.S. at 12.
162. Ibid., 11.
163. The notion that American courts should be "color-blind" is usually traced to Supreme Court Justice John Harlan. Dissenting from the Court's endorsement of the principle of "separate but equal" in Plessy v. Ferguson, Harlan insisted that "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U.S. 537, 559 (1896). But only after Brown v. Board of Education, widely interpreted as a belated endorsement of Harlan's position, did courts begin to adopt color blindness as a goal. Brown v. Board of Education, 347 U.S. 483 (1954). On the history of the color-blindness ideal, see Andrew Kull, The Color-Blind Constitution (Cambridge, Mass., 1992).
164. On developments in social science, see Omi and Winant, Racial Formation in the United States, 14-23.
165. Brown v. Board of Education, 347 U.S. 483 (1954). The Court declared distinctions based "solely on ancestry" "odious" even while upholding curfews imposed on Japanese Americans during World War II; see Hirabayashi v. United States, 320 U.S. 81 (1943). It declared race a "suspect" legal category while upholding the internment of Japanese Americans; see Korematsu v. United States, 323 U.S. 214 (1944). By 1983, no American state had a formal race-definition statute still on its books. See Chris Ballentine, "'Who Is a Negro?' Revisited: Determining Individual Racial Status for Purposes of Affirmative Action," University of Florida Law Review, 35 (Fall 1983), 692. The repeal of state race-definition statutes often accompanied repeal of miscegenation laws. See, for example, 1953 Mont. Laws ch. 4; 1959 Or. Laws ch. 531; 1965 Ind. Acts ch. 15; 1969 Fla. Laws 69-195; and 1979 Ga. Laws no. 543.
166. The fifth of these categories, "Hispanic," is sometimes described as "ethnic," rather than "racial." For very different views of the current debates, see Lawrence Wright, "One Drop of Blood," New Yorker, July 25, 1994, pp. 46-55;
167. and Michael Lind, The Next American Nation: The New Nationalism and the Fourth American Revolution (New York, 1995), 97-137.
168. People v. O. J. Simpson, Case no. BA 097211, California Superior Court, L.A. County (1994).
169. Sec, for example, Kimberle Williams Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law," Harvard Law Review, 101 (May 1988), 1331-87;
170. Dana Y. Takagi, The Retreat from Race: Asian-American Admissions and Racial Politics (New Brunswick, 1992), 181-94;
171. Girardeau A. Spann, Race against the Court: The Supreme Court and Minorities in Contemporary America (New York, 1993), 119-49.
172. Sec footnote 5, above. On recent work in the humanities, see Tessie Liu, "Race," in A Companion to American Thought, ed. Richard Wightman Fox and James T. Kloppenberg (Cambridge, Mass., 1995), 564-67.
173. On legal studies, sec Richard Delgado and Jean Stefancic, "Critical Race Theory: An Annotated Bibliography," Virginia law Review, 79 (March 1993), 461-516.